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?douta have in duo form of law put in their answer thereto, in
?which answor it is alleged, :imong other things, thnt tho
" taking of their hinds and righi of way as prayed for, will he
? a hindrance to the uso and enjoyment by respond cute ot' thoir
"own highway withiji thc intent und moaniiig ot'tho Act at'oro
"said, (Iso. 42.) And ii'such ground of objection ho made to
?appear hy clear and sufficieni. evidence produced as true and
? woll taken, then, and in such case, the prayer of tho petition
?must ho denied, as provided in and hy section eight ot'tho Act
? aforesaid."
May it please v..rn*Honors docs not this clearly indicnto that
there was no oth?jjj maller before Judgo Platt than that of
hindrance? When tho question caine beforo him subsequently
The Chief Ju-s?-je--The. Cons t docs not desire to hoar yon
further on that point, .htdgo Flatt's opinion will speak for
itself, j
Mr. Magrath-I ii mo, thou, lo tho consideration of questions
that are really uiuit?'S of d'obato. Wo aro before this Court ou
a motion for a prohibition, and t he iirst thing I have to do is to
show your Honors, if you have any doubt on tho suhjoct, that
tho power to ordor a prohibition is in this Court.
In Sot-lion 4, Article 4 of tho Constitution of South Caro
"lina, it is thus declared: "The Supremo Court shall have
?appellate, jurisdiction only in cases of chancery, and shall
? constitute a Court for tho correction of errors ut law, under
"such regulations as tho General Assembly may by law pro
"scribe: Provided, the said Court shall always have power to
"issue writs of injunction, mandamus, quo warranta, habeas cor
"??*, and such other original and remedial writs as maj/ bc
"necessary to give it a general supervisory control over all other
" Courts in thc Mate."
It is true tho term "prohibition" is not. hero to bc found ; but
as that is n writ original and remedial in its character, clearly
within tte scope of this tribunal, the power to uso it is as
clearly granted in that clause of tho constitution as if it had
heen expressly mentioned.
Ju tho caso of tho Stato vs. Hopkins, Dudley's Jit. lt., 107, it
wis hold that " when subordinate tribunals exercise judicial
power . nd err on tho quostion of jurisdiction, that is ground for
})ix>hibition ; and so ii they err on tho construction of a statute;
br unless there was some common controlling power over sub?
ordinado jurisdictions,, it is probable, and we know from exp??
rience, that there would be no uniformity in decisions."
Judge Willard-Was that a caso of an assumption of juris?
diction not possessed) or error as to extent of powers? Every?
thing turns on that; The difliculty is in showing where an
officer misconceives thc exton!ol' his right, and fails to exercise
tho whole of the jurisdiction.
Mr. Magrath-I shall come to that presently. In thc case
cited it is said whether the right <>f appeal existed or not, or
whether tho relators availed themselves of it or not, if the
subject mailor was not under their cognizance, every step was
coram nonjttdice. Your Honors will observe that in the fifteenth
section of tho same article ol' tho constitution, the language is
very different iu relation to the po'ver to issue writs of prohi?
bition and olher remedial and original writs, trout that which
is used in the fourth section jus! (ploted. "They (referring lo
the Circuit Judges) shall have power to issue writs of man?
damus, prohibition, soire facias, stud ail other writs which may
bo necessary for carrying their powers fully into effect.'"
"Their powers," thc power of each Court; not that general
supervision which tho constitution intended to give this tri?
bunal ; but a special power limited to thc jurisdiction belong?
ing to each Circuit Court in South Carolina.
The learned counsel who opened tho argument yesterday in
behalf ol'ihe Columbia and Augusta lia il road Company said
that your Honors could not proceed under this fourth section;
that legislation w;is necessary. Ho forgot that hythe very
terms ol thc cine; ital ion lins Court, in thc exercise of this
power, is sot above and bevon.! tho L?gislature of the Slate;
and tho Legislature can in no wisc affect that grant of power,
ll is a consi ital ional prerogative of this Court, and belongs
to it as much as ihe King's \\ nt docs to thc-Kiug himself.
Nor is lhere any analogy between the power given to tho Su?
preme Court of tho United*States, and thc power given to this
Court tnnlcr the constitution of this ?State, in regard lo this
matter. The judicial power of the Supremo Court of the
United Slates is exercised under an Act of Congress, und is
in prohibition by that Act, declared to extend to "the Dis?
trict Couria proceeding as Courts of Admiralty and Mar?timo
Jurisdiction," and these words at once confer and limit tho
power. Ibu by tho constitution of ibis State the power is
given to this Court, and to be exercised when " necessary
to give il (that is this Court; a general supervisory con?
trol over all other Courts in the State." Whatever, there?
fore, may be tho Court, it is made subject to the su?
pervisory control of this Court. And the power so largely
given, is conferred, not hy thc authority of tho Legislature, but
by ibo constitution, tho organic law of tho Slate. I submit,
that tho power of the Court is ample and its exercise nec?
essary, ii' thu ease we make otu is one to which prohibition
ought lo apply.
If, then, the power of this Court is so clear, the case made
out for its exercise is equally so. Ji is in thc record bcibre thc
Court. 11 presents the plain proposition that Judge Platt has
misconstrued the Act of Hie Legislature No. 42. That he has mis?
construed it in regard to his powers under that Act, in regard
to the subjects properly em bra cod in that Act, and in regard tc
thc protection which he was bound io give io tho legal rights ol
parties, before he could proceed to condemn and make them
forfeit to any person or corporation who would make claim tc
them. And the proposition wc contend for is, that when ii
person or corporation, before Judgo Platt, silting in (.'bambers
ashs his order, to condemn to its use, an existing franchise oi
privilege, granted to any oilier person or corporation in oxpresi
terms hy tho authority-of the Legislature ol* the Stale, ana tin
person or corporation holding and enjoying such pre-existing
franchise or privilege, denies that thu Legislature intended t<
divest such franchise or privilege, and shows thal in the chartei
of the person or corporation claiming, there are no oxpresi
words to support ihe claim;-nor evidence to sustain any impli
cation ; before Judge Plait by an orderte assess compensation
can thus initiate proceedings to condemn and forfeit such pre
existing franchise or privilege ; lhere must bo ti preliminary
trial und decision as lo the intent of tho Legislature to dives
its pre-existing giant of such franchise or privilege; and lo ves
the same in the person or corporation making claim thereto.
We say, and il is nut denied, that what is sought to be takoi
from the South Carolina Railroad, has been granted to it, by th?
authority of the Stale itself. That Ihe State has never ex
pressed .its purpose to resume what it has so granted anti to ves
the san. ? in Ibo Columbia and Augusta Kai i road Company
. And that before Judge Platt can thus divest tho South Carolin)
Railroad Company of its legal rights', he must bo sure that thi
Legislature so intended. That lor the decision of that quest ioi
ol' intent, a trial and decision preliminary to bis condomnatioi
thereof must be had. And that Judge Platt has no powe
under ibo constitution and laws of this State, to decide tba
question, at his Chambers; still less has bc power to proceod t<
condemn, while he refuses to hear and decide j and yet in hi
condemnation, involve the idea of his having bearii and dc
cided.
That such a proceeding calis upon this Court for its Sliporvi
gory control would seem clear; hut the authority for ?is ex
ere ice of such control, is too positivo to bo neglected.
J*n the case of Thompson** VS. ingrain ( M Adolphus and Ellii
7H), (J8 English Common Law Reports,709.) "Action in Conni\
Court, d'efendapt say- litio in question. Tho Judge ruled not
Per curium ; ihe Judge had prima facie jurisdiction j pleading
would not show title in question, that would arise up.ni tho ovi
demo; as soon as it appears that jurisdiction conies."
Now, your Honors will observe that in this case wc aro ask
ing a writ ol' prohibition for thc purpose of correcting by you
exposition of tho Act of 1<S42, tho errors which we clain
appear in tho course of the proceedings. Wo are not nskinj
you to command one thing or another io bo done: but to dotoi
mine how far tho parties in these proceedings have acted a
cording to law in tho construction of tlx- Act ol' 1842. Tba! i
the relief we expect to obtain by prohibition, and that is tho h
gitimate object of a prohibition.
In the case cit (id the Judge had jurisdiction prima facie. Th
tillo did not appear, but as soon UH tho title appears in ovidenci
say the English Courts, jurisdiction ceases.
Judge Willard -Do you lalee ibo broad ground that when?
ever a proceeding is instituted under tho Act of 1868, tho assei
tion of title is suffi; ient to oust tho jurisdiction of tho Judge?
Mr. Magrath-No, mr. Your Honor is well aware tba
. general propositions aro dangerous. My proposition, Jl:> I ha\
already stated, is that where in an applicatiod>beforo a Judg
sitting at Chambers, i: is rnado lo appear to him that au thor it
claimed Lo be derived from the L?gislature is in conflict wit;
authority equally powerful, granted to some other person, an
conferring Uga] rights sought, to be divested; ho ha? no righi
sitting in Chambers, without the authority of the Logislatur
and without trial according to law, to determine thc intent of]
tho Legislature botwoon tho conflicting grant-. Nor has ho'
power, while refusing to hear and decide a question of Legal
right, arising between w hat are alleged to be conflicting Acts
di tho State Legislature, to sot in motion thoso proceedings,
which aro provided for cases where logal rights are not in ques?
tion, and aro intended to become the ovidonce of auch rights,
vostod in tho person or corporation in whoso bohalf such pro?
ceedings are obtained. No further do I intend to go upon tho
general proposition than that, for I desire to argue this oaso only
upon tho question directly involved. I repost, therefore, a? a
proposition of law, that in such cases a question divestiug legal
rights, and affocting title to property, cannot, under tho con?
stitution and laws of this Stato, no determined by a j udgo in
Chambers.
In Com. Dig. Tit. Prohibition, Lottor F, 14, it is t>aid : "Pro?
hibition Avili lio if spiritual Courts try custom or prescription,
which are matters triable only by tho common law." Also tho
same hook Lotter G, p. 10: "In a question of tithes, if tho
parishioner proscribes in modo, tho jurisdiction ceases altogether."
So in Bacon's Abridg. Title Prohibition, Loiter L, 2 : " Questions
of freehold and rights, are only triable intemporal Courts, and if
ecclesiastical Courts intermeddle with these, prohibition lies."
In our own State, in tho caso of tho Slate vs. White, 2 N. &
McC, p. 174: "Prohibition maj issue upon a suggestion that
either tho causo original or some collateral matter arising therein
docs not belong to that jurisdiction, but to tho eognizanco of
some other Court." In thc vory case cited bj' counsel on the
otherside j'estordaj', 3d Richardson's Reports, 113: "The true
object of prohibition is to restrain tho usurpation of inferior
tribunals, and compel thom to observe limits of jurisdiction, and
thej* cannot dispenso with the evidence of witnesses and substi?
tute therefor written statements." So in Bacon's Abridg., 580:
" If a spiritual Court incidentally misconstrues Acts of Parlia?
ment contrary to tho rule of common law, prohibition lies oven
after sentence. Misconception is a matter of prohibition rather
than of appeal." In our own State again, in thc caso of tho
State vs. ltidgell, 2 Bailey II., 560 : "Although partios aro with?
in the jurisdiction of inferior Courts, if tho bounds of law aro
transgressed, prohibition will bo awarded." Where inferior
Courts misconstrue A.cts of Parliament, Gould vs. Capper, 5
Hast lt., 345, is full to tho samo point, and exhaustive of thc
question. Lord Ellenborough, the Chief Justice, delivering the
judgment of the Court, observes: " Tho objections to granting
prohibition in this case aro first, that it is too lalo after sentence ;
second, that misconstruction of a statute is matter of appeal, and
not ol' prohibition." Tho first of these objections do not arise
here ; the second is that which we proposo to consider, and
which Lord Ellenborough considers in tho question as ho states,
"whether such misconstruction be a ground for prohibition, or
merely of appeal."
It is in tho consideration of this question that ho most effect?
ually replies to the application attempted to be made to this case
of li?me vs. Lord Camden: " The authority of which," ho sa jv
" as to that point, received no confirmation in tho House of
Lords;" remembering also that in that vory case reported in
I liv. Bl., 515. as also in Brymcr vs. Atkins, 1 Ilj\ BL, 104 and
188, Lord Loughborough and tho other Judges of tho Court ol
C. B., clearly considered tho misconstruction of an Act of Parlia?
ment, as ground for prohibition. In tho same case, after advert?
ing to tho cases of prohibition to tho spiritual Courts, he adds:
"Authorities maj'be lound equally strong ns to the Courts ol
Westminister Hall, interfering by prohibition where statutes
have been expounded otherwise than tho Courts of common law
would expound them." At p. 370 ho says of the number ot
cases which ho had reviewed: "Tho subject matter-ol' all these
cases, both as they involved the determination of questions ol
a temporal nature, and the construction of statutes, was clearly
within the jurisdiction of tho several Courts prohibited. They
are eases in which the judgment given below might have
been corrected on appeal, and some of them arc cases where thc
common law Courts have taken upon themselves the construc?
tion of Acts of Parliament made respecting subjects peculiarly
relating to t he inferior Courts so prohibited; and have yet. even
in sueh cases granted prohibitions when such inferior Courts
misconstrued these Acts of Parliament."
The authority of this case has never boen questioned ; and
while.it is authority, thc proposition is" not to be questioned
that as is said in the ease in Dudley, misconstruction of a statute
is matter for prohibition, though there may be an appeal.
Although prohibition is the King's prorogative-writ and
issues properly out of thc K. B. for the furtherance of justice, ii
maj'in langland in some cases issue from tho Chancery: tin
. Common Pleas, or Exchequer directed to the Judge and partie:
lin any inferior Court. 3 Bl. Comm. 112. And in tho case o:
Wadsworth vs. Queen of Spain, 7 E. L. and Bq. li.. 355, it i:
expressly ruled that "if tho record fully discloses the error inti
j which tue inferior Court has fallen, alter there has been ai
IOXCOSS of jurisdiction, a prohibition, and not a writ of error, i:
; tho appropriate reine ly."
May it jilease your Honors, we do not stand hero to ask jon
I bj'anticipation to decido t he question of right ; but that you wil
?mi quietly sit and see our legal rights buried and destroyed b;
proceedings which have been had in the other Courts; when i
is in your power, bj" prohibition, to cnablo us to go before ?
competent tribunal, try all tho quostionsof right involved in th
case, and if necossary come regularly before j'ou hy writ of errol
Judge Willard-Have you any authority going to show tba
a misconstruction of statute is ground lor prohibition as betwcei
i Courts proceeding under tho common law?
Mr. Magrath-i submit that all tho cases cited show tba
where any Court, in a matter of common law jurisdiction, is no
proceeding according to the course of common law, prohihitioi
lies.
Judge AV il la rd-Taking the spiritual Courts, and tho Cour
of Admiralty as a tj'po of Courts not.proceeding according t<
tho course of common law, can you lind any instance wher
prohibition is allowed to a Court proceeding according to th
course of common law, upon misconstruction of the statute? I:
other words, was not this authority allowed, to shut out th
subtile introduction of ecclesiastical and civil law in thea
Courts?
; Mr. Magrath-Undoubtedly* ; it was intended that the King'
Courts should be protected ns against thc Pope's Courts; andi
' this and also in tho supposed aggressions ol the Admiralty, pn
. hibition was at first most actively employed. But the reined
afforded in relation to these Courts was fhuntL, useful in an
Jollier Court wi.ich misconstrued an Act of Parliament, an
therefore did not properly excrciso its jurisdiction.
As was sai.i in Nathans'-case, tho Courts of South Carolin
I have lound occasion to enlarge tho relief afforded hy prob i h
? lion ; and j our Honor ? cannot exclude from view i hat aocordin
j io Ihe constitution, the authority contened upon ibis tribun:
! is designedly made mont extensive for a supervisory control ovc
"all other Conns in .tins Slate;" a power ai least, as great an
j extensive as that conferred upon nnj' similar Court ill l!i
United States. Tho language i.; emphatic. ..Tho Su pro in
? Court shall always (Unit, is at all limos and in any stage of i!
proceedings) have power to ?sano writs of injunction, etc., an
such other original and remedia! writs as may bo necessary i
give ii a general supervisory control overall other Courts in t!
State." Now, if prohibition is a mode whoreby this supe
vision maj- bo accomplished, and of that there can bc no doab
thon,according to ihe constitution, this Supreme Court is bo in
to exercise t hat power whenever an inferior Court maj'ap pei
. toit netto have proceeded according to hov.
Thc true question of the case then comes up. has there hoon
proceeding which is not according to law?
This brings us to tho consideration ol' Act No. li'. No\
tho Court will allow mo lo observe, thal striking oui ll
eighth section, tho statute almost wholly conforms lo the pr
exiling legislation in tho State on tho subjoct; tho only di
terence being that instead of application ma le as former!
to the Conn, and tho valuation made by commissioners,
I is now provided that the application shall bo made to il
I Circuit Judge, and thc valuation shall bo made by a jury. Bi
lit is no where said that such application shall bo made ?
Chambers; and unless so said, wo shall prosoutly show it ca
oulj' ho made in Term.
In the first section of tho Act, il is said "that whenever ar
person or corporal ion abai! bo authorized by charter to const ru?
rt railway i <<o;.//. turnpike >.r other public highway in this Stat
such porson or corporation before entering upon anj' lands fi
tho purpose of construction, shall give to tho owner thereof (
he he sui juris) notico in writing that tho right of way is r
quired over said lauds for auch purpose." Observo now tl
phraseology, while I read Ibo eighth section: ' That, no lam
?or right of way which have heretofore or may heron fi or I
?'procured for Ce construction or uso of any highway shall 1
?'considered exempt, from any liability to condemnation, b
'the right of waj* over said land, aud aci'OflS or along such rig
'of way, may bo condemned for the construction of any otk
lihiahway; Provided, that in the construction of such oih
" highway, there be no hindrance to tho uso and enjoj-ment
-.
" tho'Highway for which mich land? or riglitTxiT^H
" viously procured; and in, alt such casos. not icc of^M
"cation tor a jury shall ho servad lipon tho Presiden t^HQS -
u corporation whoso lands Or right of way ?hali bo r'equired^oW
"upon any director or local agent ol' thc corporation."
Aro thu mat tors referred to in tho tirst section, by a just con?
struction ol" that Hlatuto tho sanio as aro referred to in the eighth
section ?
" Railway, canal, turnpike or othor publio highway," aro dis?
tinct terms usod in tho one section; and "any highway," is tho
only term used in the othor section. Now, will any ono show
an authority where u law relating to " highway," has boon con
construed a law rolating to "railway?"
"A dedication of land to the uso of the public as a highway,
is not tho dedication of it, to tho uso of a railway." (1 Med?
field, p. 303.)
Tho question has exorcised tho Courts of New York, whether
a general powor to cross " a road " would include tho powor to
crows "a turnpike," and it has been decided bj them in both ways.
It has been decided hy tho .Supreme Court of New York that il
did not include a right to cross a turnpike, and decided in tho
Court of Errors that it did include such right.
Tho Utica and Schenectady Railroad Company bad tho
right to purchase tho Mohawk turnpike and uso it as a highway,
but no authority to use it tor a railroad. Tho Court held that
the corporation could erect an embank mont to ?ts own injury
as owner of the turnpike; but was liable in damages to the ad?
joining proprietor. (Mahon vs. Utica and S. Railroad Company,
Lalor, 156.) Hero was a remarkable caso in which a railway
company having bought a turnpike, proceeded to uso it ibr tho
purposes of a railway, but tho Courts held that although it was
dedicated to the use of a highway, it did not by its transfer become
on ti tied to the privileges of a railway.
Tho General Railroad Act, Now York, 1850, gives a railroad
corporation power to construct its road "across, along, or upon
any stream, highway, plank road," etc., and adds as a condition
that it ?ball restore the stream, highway, etc., to its former slate ;
but 1 challenge the counsel for the othor sido to find a case in
the books of New York, in which a railroad corporat ion over has
ventured under that grant of power to assert its right to cross
another railroad. What means "highway?" 1 refer to Bouvier,
in litio "Highway."
Again, " highway" is a term applicable to all great roads lead?
ing from town to town, markets and public places, and denotes a
way common to all travellers." ( Harding vs. .Medway, 10 Met.
4?J?), 3 Kent's Com., 525.) Can a railway then bo considered a
public road ? Or is a goneral law relating to public roads, a
law relating to " railways? " I t hink, may il please your Honors,
there can bo.no doubt on these points.
No caso has been lound in which one railroad has interfered
by ?ny general law relating to roads with the privileges of anothei
railroad; il must have the authority of a special statute. Youl
Honors will bear with mc while I quote from 2 American Rail?
way Cases, pp. 151-5, Bradley vs. N. V. and N. Li. li. R. Co. "Thc
defendants, although acting iii and under an authority dorivei
from tho Slale, do not act, properly speaking, in its behalf, oi
as ?ts agent fir representative, nor with a special roi oren ce t<
the benefit of tho public, as is tho case when roads or otho
public improvements are made under tho immediate diroctioi
and superintendence of tho State, or its agents constituted foi
that purpose, and for the general accommodation and bom?L o
the community; bm under a special grant of po wei deemed t<
be acquired from the State for a valuable consideration, and Iii
the promotion o?' their own direct and private advantage.'
And, therefore, in thc judgment rond oreti in that case, th
learned Judge says, the question between the two railroad com
punies "becomes ono not between an individual and tho Slat?
but merely between one individual and another, and tl pen ii ;
on the extent and qualifications of the charter i i' tho defend
ants, and the obligations imposed upon them by that instrti
nient.-' (P. 155.)
In tho same case, the < Jourt speaks of a general law of thc Slat
of Connect ?cul regulating highways, and declares t he opinion t hu
it was co ni pe lent for the Legislature ol' timi Stale to have made
! similar law in relation lo railways. Not that tho law regulatin
j " highways" was applicable to " railways ; " but that a law migl
! be made which would regulato " railways." Is ii necessary t
I carry demonstration further by legal argument than i<> ?*ho
I that in all the Stales where, regulations have been mat
touching highways, in not one of them has the regulation bet
extended to embrace tho case of a railway ?
Hy 1*0 fer en co to tho l'Jth section of tho -1th article of tl
constitution, lt will bo seen that*-" the qualified electors of cac
"county shall elect three persons for the term of two year
" w ho shall constitute a Board of County Commissioners, whic
"shall have jurisdiction over roads, highways, terries, bridge
..and iii all matters relating to taxes, disbursements of mom
"lin* county purposes," etc. Hore is a constitutional rcgulath
similar to that which is to ho found in the Northern States; bi
will your Honors say that this clause, evidently taken from Ol
of their constitutions, shall receive a construction and invoh
ti powor beyond that which it ever has had elsewhere?
The rights claimed by railroads, whether as against ini
viduals or against a Slate, are malters that recoivo ti stri
construction; therefore it is that a right to run .. at ros,
road" is not a right to run "along" a road, and you cann
run "along" for the purpose*^' running "across." This poi
is distinctly made in tho case of Smith 47, Maua: li., li."), ( 1 Ile
field, 216-note.) The case of ihe Richmond Railroad Coi
puny vs. tho Louisa Railroad Company, reported in 13ih Ho
ard, 71, familiarly referred to a> a case which establish
tho right of one road to cross another, establishes nothii
more than tho right of tho Legislature by cxpross enactment
authorize it lo do so ; and in that inst anco there was a speci
orant in words to carry the road to a given point, unless t'
Richmond Railroad would consent to certain terms.
In tho casu of tho West River Bridge vs. Dix, (6 Howat
507,) tho question related to a highway, tho Act of Vermont
I8;5i), declaring that "whenever there shall bo occasion foi
new highway, ihe Courts shall havo power to tako any rc
estate, easement or franchise of an}- turnpike or other corpoi
Ition." It was a question betwoen bridges, but the rig
given by the Legislature to that special corporation, was lil
wise given in tho cases of the Boston and Lowell Railroad
Saleni and Lowell Railroad, (2 Cray R., 1,) and the Lowell a
Lawrence Railroad vs. Boston and Lowell Railroad, (7 Gray, 2
J migo Willard-Do yon take tho position thal this right
crossing can only exist by grant in express tenn?, and e
never arise by necessary implication ?
Mr. Magrath-Not at nil. I maintain that a grant may bo
express word-- or by necessary implication; bul that i.i ??itl
i mode ii ones;'- med it mind bo proved.
Now, your Honors w ill lind that neither according to tho i
finition of the term "highway," nor by any case to bo found
tho books, has a right given by a Legisla! ure to a highway, be
considered a right i hat could bo claimed hy ii railroad. A ut h o rit
on i his subject of the most pointed character are before me, and e
he produced, if tho Court desire's. Bul Ihisisnotail. I havesho*
that in relation to highways, tho constitution has provide?
special jurisdiction for their regulation, and thal juriadioti
does nol embrace cognizance of questions ol'a railway. 1 m
ijo further, and say that in all of the States of this union, t
Legislatures ovor have been most cautious in framing rules for t
preservation of property and lifo, in casos ol" railroads; and \
your Honors aro called upon in thc prosent instance, when th<
docs nofc appear in ibo statutes any regulation whatever, or a
ho Iv empowered to make a regulation concerning parallel li;
of road, to presume thal that which elsewhere has be .. a mat
o?'the most ca.\;'ul legislation has been st ad iou ly avoided
carlessly ignored by the General Asseml l\ of South ( arni ina
S This brings me to notice a somowhal collateral point- -I
crossing of the bridge al Columbia. How was (hat ero? i
tnado? Does anybody know ? To this day can anybody i
by what authority? Whilo tho motion for an injunction v
pending before tho Chancellor, while the question as to t
right-of the Columbia and Augusta Railroad Company, was;
undecided in the mind of tho Judge, the rails were laid,
curs wore run over, and the Court of lirrors passed jiulgin
not upon tho question of the righi lo build tho r ?ad, but upc
road already built ; ignoring tho decision in on? of tho I
considered cn*cs in langland, where it was held th it ?mies-?
right was distinctly given to eros* a road, it could not no
forced compulsorily under the charter. Tho Clarence Rai lr
Company vs. the Great North of ?nglaud Railroad Comps
4 (,?. B. R., 46.
We concede that lands or rights of way .ire* liable lo cond
nation, but the condemnation must ho by t .c authority of
Legislature in express terms, not by tho assertion of its claim
tht: Columbia and Augusta Railroad Company. Y mr Ho:
will observe that while wo thus announce a propositiou wi
tends to the maintenance of order, aud the preservation ?.:'
righi of property, the other sid? rest on a proposi
wTiich ignore? all right of property, and subjects it to
mere assertion of a claim by an individual or x oorporal
aright to cons^^H .-r r:
highway? Can yorHJ
dispense tin? groat auUW^B
g?rons-throwing it upoii^M
abused by anybody? lins tho^B ; >
all history ovor been so carelessly gnH
claimed as is dono in the prosont ?nlB
limitation? I cannot oxpross tho true idoa^l^fll
which tho Courts ut' this State should regard this quoslicm^^^^^i
bolter than in tho languago of Judgo Willard. "It is mani?
festly the object of section 23, article 1, to engraft upon the
laws of this State, a foaturo olsowhoro now gonorally re
garded as important for tho protection of rights of property,
namely: that persons and corporations authorized to put in ex?
orcise t he extraordinary powers of tho eminont domain, should
enter upon tho lands of others, either with their consent, of
under thc sanction of a judicial act determining tho rightful char?
acter and proper limitations of such authority." Wo ask
nothing more than your ruling shall be aoplied to this caso.
May it picase your Honors, can any safer rule bo laid down?
appose that section eight of tho Act of 1868 is by forced
construction made to apply to railroads, can you find a.hotter
guido by which to administer that act than is given in this lan?
guage ot Mr. Justice Willard ? But can you find that safeguard
recognised or adopt - 1 in any piu- of tho proceedings of this
case? Not so. Wh . can you J? id tho sanction of judicial
authority for tho claim m&>'?i by ho Columbia and Augusta
Railroad Company, to its ex irciso { tho eminont domain ? A
Judge, at Chambers refusing .o ne- r tho defence of an existing
legal right, conferred by grai : iru?? tho State; yet condemning
tho" c?iuue right, and vesting .'. in other. A jury not drawn
according to tho law of th. ?ano pplicablo to cases where
questions of freehold are coi .orneo but selected by tho Clork,
and accompanied by the Clo k, an" making tho condemnation
contrary to any prescribed o.?. iecw tzed legal modo.
Judge Willard-The quos v.i " ? my mind is whether the
remedy you seek is not lodged in ino Court of Equity'. Under
ibo new law, there is a transition and ono giving rise to an
interesting question. Tho Circuit Judgo is now clothed with
general power; ho holds the Court of Equity, and can theroforo
entortain both proceedings. Is not his position precisely anala
gousto that of the Judgo under tho previous system who ad?
judged not only legal matters, but certain matters of Equity
growing out of tho case?
Mr. Magrath-There was a remedy in equity. Mr. J. Wil?
lard gave us the remedy : and when ho made bis order for tho
injunction it was protection, up to that point where wo had a
right to ask it. Mr. J. Willard made his order of force until
the right of the Columbia and Augusta Railroad Company had
been "duly acquired;" that is the right "lawfully acquired."
Hut Judge Boozer considers it thus acquired, because Judge
Platt has ordered a jury to assess compensation for the con?
demnation of tho right; and Judge Plait ordered th? jury to
assess compensation, because no injury could bo don? thereby,
as Judge Boozer in hearing the nrotion to dissolve the injunc?
tion, would hear and decide ail the questions in the caso.
And admitting that section eight applies to railroads, there aro
proceedings which, if adopted, would give protection ; but they
I have not been adopted, because the Judgo has not seen fit to
i construe tho Act as we think your Honors will construe it.
The difficulty bas been that Judge Platt considered that tho
Legislature gave bini power to condemn, but no power to iu
quiro whether, in a given case, it intended to condemn,
j 1 recur LO the language of tho Act: "But the right of
way over said laud, and across or along such right of way, may
h.; condemned for the construction of any othor highway : Pro?
vided, that in thc construction of such other highway, there be
I no hindrance to thc use and enjoyment of the highway for
i which such lands or right of way were previously procured."
I Your Honors will mark tho limitations to the exercise of tho
1 right-the right of way "over" said land; and the right of way
! "across" or "along" such right of way. What is the demand
made? "The said Columbia and Augusta Railroad Company
require the right of way tn, along and OVER tho right of way
and lands, now claimed by the said South Carolina Railroad
Company."
Ail of these words, may it please tho Court, have attached to
them fixed, precise and technical meanings; Ult distinctions
elsewhere recognized, seem to have had little weight iu this dis?
cussion.
1 liave shown your Honors t hat the right " to cr^^B^BjSjS^?
does not involve tho right to go "along" for tho piirpos^^P^
crossing; it involves a simple right to cross directly. The Act
ol ibo Legislature says " over said land ;" and "across or along
such right of way;" and tho rulo of construction is strict.
Suppose this eighth section was drawn with spocial reference,
to the case ot the Columbia and Augusta Railroad ; I do
not know whether it was or not; whether the purpose was
general or special, who was its author or by what lights it was
drawn, hat we may suppose anything-what right could bo
claimed by that road? Chancellor Carroll says, in his dooroo,
-the right to run parallel with the South Carolina Railroad
from Granito ville to Hamburg ;" the Chancellor said that was
their right. If they claimed moro under Act 42, thoy could
only claim Ihe right to go "across" or "along," and not "upon"
any existing right of way.
Then, however, comes thc proviso : " Provided, .that in tho
construction ot' such other highway lhere bo no hindrance to
its use and enjoyment of the highway for which such lands or
right, of way were previously procured." Suppose thore is a
hindrance, who tries it? Who has authority to try it? If you
confine the operation of this eighth section to tho question of
a highway, you have in tho ninotoenth section of the fourth
article a tribunal established for tho purpose of understanding,
directing and controlling that question ; but in a question of
hindrance between railroads, who is to decide that point? Not
the County Commissioners, for they have no authority. Who
thou ? The Judge beforo whom tho application is mado? Where
is tho authority ? Hindrance is a case mado in tho proviso. It
is, therefore, a case taken out of the general provisions of tho
Act. If, therefore, there is no special provision mado for its
I trial, it must be tried according to law end in Term. But, seri
! ons as are these objections, they aro not regarded ; and the ques
I tion of hindrance is assumed ns ono which, without any special
j authority, lin Judgo alone has a right to decide; and secondly,
! that having such right, he can entertain the question out of
i ferai linn.*. Your Honor, are aware that in the Medical Col?
lege case, ibo Court of Appeals determined that a Judge in
vacation could not entertain a motion for a certiorari except
in d enn time, unless by authority of an Act of the Legislature.
Xor can you point me to tho law in South Carolina by which a
Judge in Chambers is authorized to decide a question involving
the divosturo ol' legal rights? And if that question of legal
ri .ht. involves matters of fact, resulting from testimony, tho
power of a J udgo at. Chambers to decide it, is no where to bo
found. What is hindrance? Is it not a question of fuel? Tho
constitution expressly provides that. "Judges shall not even
charge juries in respect to '.natters of fact;" and yet the propo?
sition has boen maintained on tho other side, that although a
Judge shall not express an opinion upon a question of fact before
?a jury, he can, without authority, sitting at Chambers dotcr
. mme thal very question. In the case reported in 1 American
1 Hallway Cases, 576-the inhabitants of Springfield V8. the Conn.
I Uiver Railroad, Chief Just iee Shaw held that tho Vermont Act
j oi' 1849 did no: ..ive jurisdiction to thc Commissioners to docide
whr. her the railroad was laid down, or located in conformity
! willi the gram of power given in the Act of incorporation.
Judge Willard-Th oso were Commissioners to ascertain com
1 pcnsation ?
.Mr. Magrath-As in this case is tho jury, yes; as such and
; without other power they could not decide a question of looa?
lion, and certainly, therefore, not a question of conflicting
claims. May it please the Court, 1 have only brought to your
' attention t!.-' most prominent, ot this class of cases, and there it
I enough :;? thom to justify your Honors in excluding from this
case altogether tho consideration of the eighth section, as a
section applicable to railroads. Thone cases, at least, go far SJ
to show that the power authorized to determine the location of
a'railroad, is not ihe power lo determino tho right of location;
ami under our laws ami dec isions, it is submitted ?rf tho third
pine? that when the que.-.lion of hindrance doc* occur, it is not
a matter to be decided by a Judf-c at Chambers,
j Judge Willard - Is there not a distinction between a hin
j dranes of a general ehaructor, which might present u question cf
equity, and hindrance us a special question? Might there not
i be many questions relating to these two roads only triable in a
i i Court of Equity? and. yet may not a special question of bin*
i . drance arise in reference to lund sought to be condemned whioh
. I could properly come before a Judge at Chambers?